Protocols assist judges and lawyers with concerns and complaints

The Benchers have concluded a protocol agreement with the Provincial Court, set out below, to guide any Provincial Court judges or Judicial Justices of the Peace (JJPs) who may be considering making a complaint about a lawyer and to guide any BC lawyer who is contemplating making a complaint about a judge.

The protocol is not intended to discourage complaints or to replace existing complaints processes — rather it recognizes that a judge, a JJP or a lawyer may benefit from advice or assistance in making a complaint, or in deciding whether it is appropriate to make a complaint.

The new protocol deals with complaints between lawyers and Provincial Court judges (or JJPs) generally. An earlier protocol concluded in 1997 between the Law Society and all three levels of court in BC specifically addresses how lawyers and judges may handle concerns in the course of an ongoing court proceeding.

Protocol between the Provincial Court and the Law Society respecting complaints (2004)

Text of the Protocol

Whereas:

1. Lawyers, judges and judicial justices of the peace (JJPs) have ethical duties to report misconduct to the appropriate disciplinary body; and

2. In some cases a lawyer or a judge or JJP may benefit from advice or assistance in making a complaint or deciding whether it is appropriate to do so.

Therefore, the following protocol has been mutually agreed upon between the Chief Judge of the Provincial Court of British Columbia and the President of the Law Society of British Columbia. Nothing in this protocol is intended to discourage complaints or replace existing complaint processes. Specifically, this protocol is intended to complement the protocol adopted by the Law Society in 1997, referred to as the Maclean/Fraser protocol,* which pertains to complaints in the case of going proceedings.

Complaints by a judge or JJP about a lawyer

Where it appears to a judge that a complaint about a lawyer may be appropriate, and the judge desires assistance in making a complaint or deciding whether it is appropriate to do so, the judge may bring the matter first to the attention of his/her Administrative Judge before a formal complaint is pursued. After discussing the matter with the judge, the Administrative Judge may then raise the matter with the Chief Judge or an Associate Chief Judge, who will vet the complaint.

Where it appears to a JJP that a complaint about a lawyer may be appropriate, and the JJP desires assistance in making a complaint or deciding whether it is appropriate to do so, the JJP may bring the matter to the attention of an Associate Chief Judge or the Chief Judge before a formal complaint is pursued.

There may be situations where a formal complaint appears premature, does not appear to be necessary, or may not be the most constructive means of proceeding, such as where there are emotional problems or personal crises. In these cases, the Chief Judge or Associate Chief Judge may consider approaching a Bencher or member of the Discipline Committee to discuss how to proceed in the matter to determine, for instance, whether an appropriately placed word of advice might suffice, in the best traditions of the Bar and Bench.

If, after it is vetted through the above process, a complaint appears warranted or appropriate, all relevant materials should be forwarded to the Chief Judge by the judge or JJP, including a court transcript, if available. The Chief Judge will then submit the complaint on behalf of the court, and future communications with the Law Society about the complaint will take place through the Chief Judge.

It is preferable, if possible, that such complaints proceed without the judge or JJP becoming a direct complainant or witness in the matter. The Law Society agrees that, where a formal complaint is advanced by the Chief Judge after this vetting process, it will be given due consideration, if possible without the judge or JJP who brought it becoming a party to the proceedings or indeed being further involved at all.

Unauthorized practice

When a judge or JJP becomes aware of a person who is not a lawyer holding him or herself out to be a member of the Law Society, this may be the subject of an immediate complaint, either directly to the Law Society Unauthorized Practice Committee or through the Administrative or Chief Judge if preferred. Confirmation of whether a person is registered with the Law Society may be obtained through the Law Society website at www.lawsociety. bc.ca or by telephone at 604 669-2533.

Complaints by a lawyer about a judge or JJP

Where it appears to a lawyer that a judge or JJP’s conduct may be in question, and the lawyer desires assistance in making a complaint or deciding whether it is appropriate to do so, the lawyer may raise the matter with a Bencher before lodging a written complaint to the Chief Judge. In such circumstances, the Bencher may consider discussing the matter with the Chief Judge prior to deciding whether a formal complaint should proceed, or whether some other intervention short of a complaint may be appropriate.

If it is determined, after consultation with a Bencher and/or the Chief Judge, that a formal complaint should be made, it should be submitted in writing to the Chief Judge, with a copy of the transcript if one is available. It is preferable that the matter proceed on a transcript or other available written material, rather than placing the lawyer in the position of being a direct complainant or witness.

Protocol between the Law Society and the BC courts respecting concerns that arise in ongoing proceedings (1997)

Background

Under the 1997 protocol concluded between the Law Society and all three levels of court in BC, a special panel is available to assist with problems that might occasionally arise between judges and lawyers in ongoing proceedings before the Provincial Court, Supreme Court of BC or the BC Court of Appeal.

The special panel can provide emergency assistance or advice to a lawyer in the course of a trial or other proceeding when such assistance is requested by a judge who has concerns about that lawyer’s conduct or competence. The panel is also available to provide advice and assistance to lawyers who have complaints about judges. Members of the panel will act in accordance with the protocol approved by the Law Society, and their services are entirely optional — no judge or lawyer is obliged to participate.

This panel was recommended by a special Law Society Committee on Relations between the Law Society and the Judiciary, comprised of Leonard Doust, QC, as Chair, Bruce Fraser, QC, Marguerite Jackson, QC, Charles Maclean, QC, Karl Warner, QC and Karen Nordlinger, QC. Their report is available in the Publications/Report section of the Law Society website at www.lawsociety.bc.ca.

Ms. Nordlinger of Vancouver currently serves on the special panel. At least one other senior practitioner is expected to be appointed in the near future to replace Mr. Justice Robert Johnston, who served on the panel up to the time of his recent judicial appointment.

Under the protocol, when a judge has concerns that a litigant is receiving inadequate representation, the judge may adjourn the matter so the litigant can retain other counsel, or may alternatively attempt to control the process to ensure the case is decided fairly. As noted in 1997 by the Committee on Relations between the Law Society and the Judiciary, the urgency of an issue before the court may in some instances preclude a judge from adjourning the matter, or it may be difficult for the judge to control the process to ensure fairness.

In the Committee’s view, it is not appropriate for the Law Society to take any action on a judge’s complaint about a lawyer until the ongoing proceedings have been completed or adjourned, except in the most unusual circumstances. The concern was that there be no miscarriage of justice or appearance of unfairness to the lawyer about whom the complaint is made, or to the lawyer’s client.

The Committee recommended that the services of an independent panel of senior and respected barristers should be available to judges in such circumstances to provide advice and assistance to the lawyer, in accordance with the protocol set out below. No judge or lawyer is bound to avail themselves of the services of the special panel — participation is voluntary.

The special panel is also available to give advice and assistance to a lawyer who feels that a judge’s conduct has been inappropriate. The panel may advise on whether or not to proceed to a complaint and may canvass the options of making a complaint to the appropriate judicial council, raising as a legal issue in the trial whether the judge’s actions manifest a bias against the lawyer’s client or asking the Law Society to raise the matter informally with the appropriate Chief Justice or Chief Judge.

Text of the Protocol

1. The judge who has concerns should seek advice from the Chief Justice or Associate Chief Justice or, in the case of the Provincial Court, with the Chief Judge or an Associate Chief Judge.

2. No steps under this protocol will be taken if the judge, after receiving advice, concludes that the interests of the litigant can be adequately protected by the judge or that the matter can be adjourned.

3. If the interests of the litigant cannot be adequately protected by the judge or the matter cannot be adjourned, the Chief Justice, Associate Chief Justice, Chief Administrative Judge or Assistant Chief Administrative Judge may approach the special panel for assistance.

4. When the special panel receives a request for assistance, it will immediately contact the lawyer affected and attempt to provide assistance.

5. Other than informing the judge who contacted the special panel of the fact that the lawyer has been contacted (and nothing further), the special panel will provide no information to anyone and, in particular, will not inform the Law Society of its activities with respect to any specific case.

6. If the lawyer declines the assistance offered, no further steps will be taken by the special panel. The panel will not report to anyone on whether the assistance it offered has been declined or accepted by the lawyer.

7. A judge will be free to report a lawyer’s conduct to the Law Society at any time and have the complaint dealt with in accordance with the Society’s normal procedures. However, where the complaint relates to a trial that is still proceeding, the Society will take no action on the complaint unless:

(a) the trial or interlocutory matter is completed or adjourned,

(b) a mistrial is declared,

(c) counsel is no longer acting on the matter, or

(d) Law Society representatives are satisfied that the continued practice of the lawyer would be dangerous or harmful to the public or the lawyer’s clients.

Except in extraordinary circumstances, where a judge makes a complaint against a lawyer to the Law Society, the lawyer will receive notice of the complaint from the Law Society.

8. Where a judge hearing a case requests the assistance of the special panel directly, the panel will, nevertheless, respond to that judge’s request in the same way as if the request had been made by an administrative judge.

9. Where a judge approaches the Law Society, outside of the complaints process, to intervene in a matter, the Society should only do so when:

(a) Law Society representatives are satisfied that the continued practice of the lawyer would be dangerous or harmful to the public, the lawyer’s client in the proceedings or other clients, and

(b) the judge making the approach is unwilling to follow the usual protocol, or the protocol has been followed but has not succeeded in resolving the matter.